Probabilistic standing

Northwestern University Law Review

Volumn 106, Issue 1, 2012, Pages 55-102

  Andrew Hessick, F ^a  

^a ARIZONA STATE UNIVERSITY   (United States)

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EID: 84863626508     PISSN: 00293571     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (417)

1. See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006) ("If a dispute is not a proper case or controversy, the courts have no business deciding it, or expounding the law in the course of doing so.")
2. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-41 (1937) ("The controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests."). The Supreme Court has also said that Article III imposes other limitations, such as a requirement that the dispute must be of the sort traditionally heard by the courts.
3. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 102 (1998)
4. GTE Sylvania, Inc. v. Consumers Union, Inc., 445 U.S. 375, 382 (1980) (stating that federal courts may resolve legal questions only when "presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process" (quoting Flast v. Cohen, 392 U.S. 83, 95 (1968)) (internal quotation mark omitted)).
5. Alvarez v. Smith, 130 S. Ct. 576, 580 (2009) ("The Constitution permits this Court to decide legal questions only in the context of actual 'Cases' or 'Controversies.'" (quoting U.S. CONST. art. III, § 2))
6. Cuno, 547 U.S. at 341 ("[N]o principle is more fundamental to the judiciary's proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies." (quoting Raines v. Byrd, 521 U.S. 811, 818 (1997)) (internal quotation marks omitted))
7. see also Summers v. Earth Island Inst., 555 U.S. 488, 492 (2009) (stating that "courts have no charter to review and revise legislative and executive action" except "when necessary in the execution of" deciding justiciable disputes).
8. See Cuno, 547 U.S. at 341 (stating that if courts could address all legal questions under the Constitution, "[t]he division of power [among the branches of government] could exist no longer, and the other departments would be swallowed up by the judiciary" (alterations in original) (quoting John Marshall, Speech Delivered in the House of Representatives of the United States on the Resolutions of the Hon. Edward Livingston (Mar. 7, 1800), in 4 THE PAPERS OF JOHN MARSHALL 82, 95 (Charles T. Cullen ed., 1984)) (internal quotation mark omitted)).
9. See City of Los Angeles v. Lyons, 461 U.S. 95, 102-06 (1983).
10. See Salazar v. Buono, 130 S. Ct. 1803, 1814 (2010) ("To demonstrate standing, a plaintiff must have 'alleged such a personal stake in the outcome of the controversy as to warrant his invocation of federal-court jurisdiction.'" (quoting Horne v. Flores, 129 S. Ct. 2579, 2592 (2009))). In some older decisions, the Court relied on the restriction on advisory opinions.
11. See United Pub. Workers v. Mitchell, 330 U.S. 75, 89-91 (1947).
12. O'Shea v. Littleton, 414 U.S. 488, 494 (1974) (internal quotation marks omitted).
13. See, e.g., Richard H. Fallon, Jr., The Linkage Between Justiciability and Remedies-And Their Connections to Substantive Rights, 92 VA. L. REV. 633, 698 (2006) (supporting a qualitative approach to assessing the substantiality of risk for standing)
14. Jonathan Remy Nash, Standing and the Precautionary Principle, 108 COLUM. L. REV. 494, 511-15 (2008) (advocating for the incorporation of the precautionary principle into standing doctrine, under which states would have standing to sue for uncertain risks of potentially catastrophic and irreversible injury)
15. Cass R. Sunstein, Standing Injuries, 1993 SUP. CT. REV. 37, 46-50 (criticizing the Court's approach to standing in cases alleging a risk of future harm)
16. see also Amanda Leiter, Substance or Illusion? The Dangers of Imposing a Standing Threshold, 97 GEO. L.J. 391 (2009) (criticizing the D.C. Circuit's particularly high threshold on risk for standing as immoral and not compelled by doctrine).
17. See, e.g., Summers v. Earth Island Inst., 555 U.S. 488, 492-97 (2009)
18. Davis v. FEC, 554 U.S. 724, 734-35 (2008)
19. Massachusetts v. EPA, 549 U.S. 497, 521-23 (2007)
20. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181-84 (2000)
21. Lujan v. Defenders of Wildlife, 504 U.S. 555, 563-64 (1992)
22. Whitmore v. Arkansas, 495 U.S. 149, 157 (1990)
23. Diamond v. Charles, 476 U.S. 54, 66 (1986)
24. Lyons, 461 U.S. at 105
25. Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298-99 (1979)
26. Ashcroft v. Mattis, 431 U.S. 171, 172 & n.2 (1977)
27. Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 40-44 (1976)
28. Rizzo v. Goode, 423 U.S. 362, 371-73 (1976)
29. O'Shea, 414 U.S. at 494.
30. Compare, e.g., Vill. of Elk Grove Vill. v. Evans, 997 F.2d 328, 329 (7th Cir. 1993) ("[E]ven a small probability of injury is sufficient to create a case or controversy...."), with Sierra Club v. EPA, 292 F.3d 895, 899 (D.C. Cir. 2002) (requiring a "substantial probability" of injury (quoting Am. Petroleum Inst. v. EPA, 216 F.3d 50, 63 (D.C. Cir. 2000) (internal quotation marks omitted))).
31. See Nash, supra note 7, at 498-99.
32. See Fallon, supra note 7, at 698.
33. U.S. CONST. art. III, § 2, cl. 1.
34. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 (2006) (quoting 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 430 (Max Farrand ed., rev. ed. 1966)).
35. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 241 (1937)
36. Accord David P. Currie, Misunderstanding Standing, 1981 SUP. CT. REV. 41, 41-47
37. See also MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127 (2007) (noting that to be justiciable, the dispute must "admi[t] of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts." (alteration in original) (quoting Haworth, 300 U.S. at 241) (internal quotation marks omitted))
38. Warth v. Seldin, 422 U.S. 490, 500 (1975) ("[T]he standing question... is whether the constitutional or statutory provision on which the claim rests properly can be understood as granting persons in the plaintiff's position a right to judicial relief.").
39. See Cuno, 547 U.S. at 341 ("[N]o principle is more fundamental to the judiciary's proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies." (quoting Raines v. Byrd, 521 U.S. 811, 818 (1997)) (internal quotation marks omitted)).
40. See id. at 340-41
41. see also Marshall, supra note 3, at 95 ("If the judicial power extended to every question under the constitution it would involve almost every subject proper for legislative discussion and decision; if to every question under the laws and treaties of the United States it would involve almost every subject on which the executive could act. The division of power [among the branches of government], could exist no longer, and the other departments would be swallowed up by the judiciary.").
42. Ass'n of Data Processing Serv. Orgs. Inc. v. Camp, 397 U.S. 150, 152, 154 (1970). Courts and commentators have disagreed over the kinds of injuries that should suffice for standing. Some have argued that a violation of rights should suffice for standing
43. see, e.g., Zivotofsky ex rel. Ari Z. v. Sec'y of State, 444 F.3d 614, 619 (D.C. Cir. 2006) ("[A] concrete and particular injury for standing purposes can... consist of the violation of an individual right conferred on a person by statute.")
44. F. Andrew Hessick, Standing, Injury in Fact, and Private Rights, 93 CORNELL L. REV. 275, 324 (2008), while others have contended that standing should turn on whether the plaintiff suffered any consequences from the violation of the right
45. see, e.g., Doe v. Nat'l Bd. of Med. Exam'rs, 199 F.3d 146, 153 (3d Cir. 1999) ("The proper analysis of standing focuses on whether the plaintiff suffered an actual injury, not on whether a statute was violated.")
46. John G. Roberts, Jr., Article III Limits on Statutory Standing, 42 DUKE L.J. 1219, 1220 (1993). It is unnecessary to resolve that dispute in this paper, which addresses the requirement that the injury for standing-whatever it may be-be nonspeculative and imminent.
47. Bennett v. Spear, 520 U.S. 154, 162 (1997)
48. Accord Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009)
49. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000)
50. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).
51. See Summers, 555 U.S. at 493 (noting that standing ensures that the plaintiff has "'alleged such a personal stake in the outcome of the controversy' as to warrant his invocation of federal-court jurisdiction" (quoting Warth, 422 U.S. at 498-99 (internal quotation mark omitted)).
52. See Lujan, 504 U.S. at 576.
53. U.S. CONST. art. III, § 2, cl. 1 ("The judicial Power shall extend to all Cases, in Law and Equity....").
54. See, e.g., Mark A. Lemley & Eugene Volokh, Freedom of Speech and Injunctions in Intellectual Property Cases, 48 DUKE L.J. 147, 154-58 (1998) (documenting the early American history of copyright injunctions)
55. Daniel J. Walker, Note, Administrative Injunctions: Assessing the Propriety of *on-Class Collective Relief, 90 CORNELL L. REV. 1119, 1129-32 (2005) (documenting the early history of injunctions in America).
56. See, e.g., Vicksburg Waterworks Co. v. Vicksburg, 185 U.S. 65, 82 (1902) (holding that a "threatened" injury from illegal activity presented an actual case)
57. see also Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 472 (1982) (recognizing standing for a party who "personally has suffered some actual or threatened injury" (quoting Gladstone, Realtors v. Vill. of Bellwood, 441 U.S. 91, 99 (1979))).
58. See, e.g., Lujan, 504 U.S. at 560-61.
59. E.g., Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)
60. City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983)
61. Golden v. Zwickler, 394 U.S. 103, 109-10 (1969)
62. United Pub. Workers v. Mitchell, 330 U.S. 75, 89-91 (1947)
63. see also Md. Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 273 (1941) (requiring a "substantial controversy").
64. See Bryant v. Yellen, 447 U.S. 352, 366-68 (1980) (finding standing for workers to challenge refusal to apply law where application of law would have increased the likelihood that land would be available for sale at a low price).
65. Lujan, 504 U.S. at 560
66. see Diamond v. Charles, 476 U.S. 54, 66 (1986) (rejecting standing based on "unadorned speculation")
67. Lyons, 461 U.S. at 105 (denying standing to an individual seeking to challenge police chokehold because it was only speculative that the plaintiff would be subjected to chokehold)
68. Ashcroft v. Mattis, 431 U.S. 171, 171-72 & n.2 (1977) (denying standing in a claim challenging police use of deadly force against a person attempting to escape arrest)
69. O'Shea v. Littleton, 414 U.S. 488, 497 (1974) (denying standing to residents who sought injunctive relief against judges allegedly engaged in a pattern and practice of discriminatory practices on the ground that the threat to plaintiffs from this discrimination was only "speculation and conjecture")
70. Golden, 394 U.S. at 109 (denying standing for a claim based on the potential future candidacy of a former Congressman)
71. Mitchell, 330 U.S. at 89-91 (stating that a "hypothetical threat [of enforcement] is not enough" for jurisdiction)
72. see also Pub. Citizen, Inc. v. Nat'l Highway Traffic Safety Admin., 489 F.3d 1279, 1294 (D.C. Cir. 2007) (denying standing for claim of speculative future injury), modified on reh'g by 513 F.3d 234 (D.C. Cir. 2008) (per curiam).
73. 495 U.S. 149.
74. Id. at 153.
75. Id. at 153-54.
76. Under Arkansas law, the Arkansas Supreme Court assessed the propriety of death sentences by comparing them to other death sentences.
77. See id. at 156-57.
78. Id. at 156.
79. Id. at 166.
80. Id. at 157.
81. 292 F.3d 895, 896-97 (D.C. Cir. 2002).
82. Id. at 901.
83. Id. at 902
84. see also NRDC v. EPA, 440 F.3d 476, 481-84 (D.C. Cir. 2006) (holding that a risk of 1 in 4.2 billion is insufficiently substantial to support standing), overruled on other grounds by 464 F.3d 1, 7 (D.C. Cir. 2006)
85. Ctr. for Law & Educ. v. Dep't of Educ., 396 F.3d 1152, 1161 (D.C. Cir. 2005) (denying standing to a plaintiff who failed to establish a "demonstrably increased risk" from a challenged regulation (quoting Fla. Audubon Soc'y v. Bentsen, 94 F.3d 658, 667) (internal quotation marks omitted)). Professor Leiter has argued that this risk threshold for standing is unique to the D.C. Circuit.
86. See Leiter, supra note 7, at 404. But the Supreme Court has held that not all risks suffice for standing, instead requiring that the risk be "real."
87. See City of Los Angeles v. Lyons, 461 U.S. 95, 101-02 (1983) (internal quotation mark omitted). And several circuits other than the D.C. Circuit have likewise imposed a heightened risk threshold.
88. See Stewart v. Blackwell, 444 F.3d 843, 855 (6th Cir. 2006) (stating that an increased risk of harm suffices for standing, so long as the risk is "neither speculative nor remote"), superseded by 473 F.3d 692, 694 (6th Cir. 2007) (en banc)
89. Paul Revere Variable Annuity Ins. Co. v. Kirschhofer, 226 F.3d 15, 24 (1st Cir. 2000) (requiring a "realistic risk of significant harm" for standing)
90. see also Cent. Delta Water Agency v. United States, 306 F.3d 938, 950 (9th Cir. 2002) (requiring a "credible threat of harm" to support standing)
91. Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 159 (4th Cir. 2000) (en banc) (noting that low risks because of a lack of imminence do not suffice for standing). That said, some circuits have rejected a minimum threshold of risk for standing despite the Supreme Court's holding.
92. See Baur v. Veneman, 352 F.3d 625, 634 (2d Cir. 2003) (finding standing based on the "enhanced risk" from exposure to "potentially harmful products")
93. Vill. of Elk Grove Vill. v. Evans, 997 F.2d 328, 329 (7th Cir. 1993) ("[E]ven a small probability of injury is sufficient to create a case or controversy....").
94. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (quoting Whitmore, 495 U.S. at 155)
95. see also O'Shea v. Littleton, 414 U.S. 488, 494 (1974) (requiring the risk to be "immediate" (quoting Golden v. Zwickler, 394 U.S. 103, 109 (1969)) (internal quotation mark omitted))
96. Massachusetts v. Mellon, 262 U.S. 447, 488 (1923) (requiring the plaintiff to show "that he has sustained or is immediately in danger of sustaining some direct injury").
97. See Gene R. Nichol, Jr., Ripeness and the Constitution, 54 U. CHI. L. REV. 153, 160-62 (1987).
98. See Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967), abrogated by Califano v. Sanders, 430 U.S. 99, 105 (1977).
99. See Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., 130 S. Ct. 1758, 1767 n.2 (2010) ("Ripeness reflects constitutional considerations that implicate 'Article III limitations on judicial power[]'...." (quoting Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 57 n.18 (1993))).
100. See Abbott Labs., 387 U.S. at 149 (stating that ripeness turns, in part, on the "hardship to the parties of withholding court consideration").
101. See MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 128 n.8 (2007)
102. Hotel & Rest. Emps. Union, Local 25 v. Attorney Gen., 804 F.2d 1256, 1277 n.10 (D.C. Cir. 1986) (Silberman, J., concurring in part and dissenting in part) (equating constitutional ripeness with imminence), vacated, Hotel & Rest. Emps. Union, Local 25 v. Smith, 846 F.2d 1499 (D.C. Cir. 1988) (en banc)
103. See also Nichol, supra note 40, at 172 (noting the link between ripeness and standing).
104. Ripeness also has prudential aspects.
105. See Stolt-Nielsen, 130 S. Ct. at 1767 n.2 (noting the "prudential reasons" underlying ripeness (quoting Reno, 509 U.S. at 57 n.18) (internal quotation mark omitted)). The prudential component of ripeness asks whether the case is fit for judicial review at the time of suit. Whether a case is fit for review does not implicate the power of the courts to act; instead, it focuses on whether the court has adequate information to make an informed decision.
106. See ERWIN CHEMERINSKY, FEDERAL JURISDICTION § 2.4.1, at 119 (5th ed. 2007) ("[T]he focus on the quality of the record seems prudential."). On this understanding, courts have discretion to consider a claim that may not be fit for review, but they are constitutionally forbidden from considering claims when delaying review would not present a hardship to the plaintiff.
107. One reason to require imminence is to promote efficient use of resources. For more on this and other reasons, see infra Part IV.C.
108. 504 U.S. 555, 565 n.2 (1992) (stating that the "purpose" of "imminence" is "to ensure that the alleged injury is not too speculative for Article III purposes-that the injury is 'certainly impending'" (quoting Whitmore v. Arkansas, 495 U.S. 149, 158 (1990)) (internal quotation marks omitted)).
109. See Lujan, 504 U.S. at 565 n.2.
110. See Summers v. Earth Island Inst., 555 U.S. 488, 495-97 (2009).
111. The Court has made this observation in the ripeness context.
112. See Reg'l Rail Reorganization Act Cases, 419 U.S. 102, 143 (1974) (finding a claim ripe even though the injury was not imminent because the "injurious event [was] certain to occur").
113. Courts have defined the interests to support standing broadly to include not only economic and physical interests, but also aesthetic, spiritual, and recreational interests.
114. See Ass'n of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150, 154 (1970). Still, not all personal interests will suffice. Courts have refused standing based on racial stigmatization.
115. see Allen v. Wright, 468 U.S. 737, 759 (1984), and the interest in governmental compliance with the law.
116. see United States v. Richardson, 418 U.S. 166, 179 (1974).
117. See supra Part I.A.
118. THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 13, at 430
119. Richard J. Pierce, Jr., Is Standing Law or Politics?, 77 N.C. L. REV. 1741, 1763-64 (1999) (stating that the statement was "[t]he only remotely relevant" one regarding the case-or-controversy requirement).
120. Lujan v. Defenders of Wildlife, 504 U.S. 555, 576 (1992) (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170 (1803))
121. Accord Hein v. Freedom from Religion Found., Inc., 551 U.S. 587, 598 (2007) (plurality opinion); id. at 636 (Scalia, J., concurring in the judgment).
122. See Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 297 (1979).
123. See MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127 (2007) (noting that to be justiciable, the dispute must "admi[t] of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts" (alteration in original) (quoting Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 241 (1937)) (internal quotation marks omitted)).
124. See NRDC v. EPA, 464 F.3d 1, 7 (D.C. Cir. 2006) (finding risk of 1 in 200,000 sufficiently substantial to support standing).
125. Recall that, aside from injury, a plaintiff must demonstrate that the injury is traceable to the defendant and that a judicial order would redress the injury.
126. See Monsanto Co. v. Geertson Seed Farms, 130 S. Ct. 2743, 2752 (2010) (setting forth requirements of "traceab[ility]" and "redressab[ility]" as prerequisites to standing); supra note 18 and accompanying text.
127. One might argue that if the defendant's action produces only a small threat of injury and the plaintiff would still face some threat of incurring that same injury even if the defendant's conduct were stopped, then the injury the plaintiff may face is not traceable to the defendant and would not be redressed by a court order in the plaintiff's favor. But in Massachusetts v. EPA, the Court explained that even when a plaintiff faces a risk of injury from multiple sources, if the action represents even a "small incremental step" towards eliminating that risk, then it satisfies the traceability and redressability requirements of Article III. 549 U.S. 497, 524 (2007).
128. United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 689 n.14 (1973) (quoting Kenneth Culp Davis, Standing: Taxpayers and Others, 35 U. CHI. L. REV. 601, 613 (1968)).
129. There are reasons to question this doctrine. If any identifiable trifle can support standing, standing should pose no barrier to any plaintiff's suit because anyone who is motivated enough to file suit has suffered some emotional distress-which is at least a trifling injury-from the challenged conduct. Indeed, for this reason, the Court itself has limited the types of injuries that may support standing.
130. See, e.g., Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc.,
131. 454 U.S. 464, 486 (1982) (refusing to recognize standing based solely on psychic harm). This limitation has led to confusion in standing law because the Court has refused to abandon its rhetorical stance that any trifle suffices for standing and has continued to allow standing based on certain types of psychic injury such as the displeasure arising from harm to aesthetic interests.
132. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 183 (2000). That said, there are also reasons for retaining the identifiable trifle standard. Among other things, the standard prevents judges from imposing their preferences in deciding which cases are "worth" adjudicating. Different people value different things differently. A dollar might matter more to X than to Y, because Y might be much richer than X. Setting a minimum threshold on the value of the injury for standing risks excluding harms that some might think are important.
133. See generally Gene R. Nichol, Jr., Standing for Privilege: The Failure of Injury Analysis, 82 B.U. L. REV. 301, 324-28 (2002) (noting that judges recognize injury based on their own preferences).
134. See Leiter, supra note 7, at 406.
135. This concept is reflected in the notion of expected value.
136. See 5 DAVID BESANKO, DAVID DRANOVE, MARK SHANLEY & SCOTT SCHAEFER, ECONOMICS OF STRATEGY 470 & 503 n.2 (5th ed. 2010).
137. See Sunstein, supra note 7, at 46-50. One example of risk causing injury outside the legal context comes from the stock market. The market routinely discounts the present values of a firm's securities based on the risks associated with that firm's future performance. Conduct today that increases the risk for the firm tomorrow injures the firm by reducing the firm's present value.
138. See Daniel A. Farber, Uncertainty as a Basis for Standing, 33 HOFSTRA L. REV. 1123, 1123 (2005).
139. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 211 (1995) (stating that injury occurs when a "discriminatory classification prevent[s] the plaintiff from competing on an equal footing" (alteration in original) (quoting Ne. Fla. Chapter of the Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 667 (1993)) (internal quotation marks omitted)).
140. Likewise, even if the nonminority applicant would have received the job under a race-neutral process, the minority applicant is still harmed if the actual reason for the decision was race-based.
141. One might argue that the recognition of standing for loss-of-opportunity claims might be based on a normative conclusion that such injuries are particularly important and therefore do not establish that standing extends to other risk injuries. But the Court has not made that distinction. Moreover, the normative desirability of recognizing standing for a particular claim is encompassed by the separate judicially cognizable test.
142. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).
143. Summers v. Earth Island Inst., 555 U.S. 488, 495-97 (2009)
144. Lujan, 504 U.S. at 573.
145. See Summers, 555 U.S. at 496-97.
146. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000).
147. See Cass R. Sunstein, What's Standing After Lujan? Of Citizen Suits, "Injuries," and Article III, 91 MICH. L. REV. 163, 228 (1992).
148. See STEPHEN G. BREYER, RICHARD B. STEWART, CASS R. SUNSTEIN & ADRIAN VERMEULE, ADMINISTRATIVE LAW AND REGULATORY POLICY: PROBLEMS, TEXT, AND CASES 351 (6th ed. 2006) (describing the range of consequences from judicial remands of agency actions).
149. To be sure, some injuries-such as stigma and dissatisfaction with government action-cannot support standing.
150. See CHEMERINSKY, supra note 45, § 2.3.2, at 74.
151. But those exceptions depend on the type of injury, not the size of that injury. Economic injury will always support standing even if the economic loss is extremely small. Likewise, if an injury is of the sort that cannot support standing, standing will still be unavailable even if that injury is extremely large.
152. See, e.g., Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 485-86 (1982) (refusing to find standing based on intense dissatisfaction with government policies because dissatisfaction with government policies cannot alone support standing).
153. Lujan v. Defenders of Wildlife, 504 U.S. 555, 572 n.7 (1992).
154. See supra note 47 and accompanying text.
155. See supra note 47 and accompanying text.
156. If anything, a lack of imminence provides greater reasons for not recognizing standing because other branches might have sufficient time to cure the alleged harm.
157. See infra Part IV.C.
158. See supra text accompanying note 56.
159. See, e.g., DAN B. DOBBS, LAW OF REMEDIES: DAMAGES-EQUITY-RESTITUTION § 2.5(3), at 92-93 (2d ed. 1993) (articulating arguments underlying coercive remedies).
160. Indeed, there is a greater than 50% chance of injury occurring to a resident in a town of 693,147 residents. This results from solving for x in the following inequality: 1 - (999,999/1,000,000)x > 0.5.
161. See Bi-Metallic Inv. Co. v. State Bd. of Equalization, 239 U.S. 441, 445-46 (1915) (distinguishing between legislation, which is general, and adjudication, which is particularized)
162. Leiter, supra note 7, at 413-14.
163. See Felix Frankfurter, A Note on Advisory Opinions, 37 HARV. L. REV. 1002, 1005 (1924) ("[L]egislation to a considerable extent must necessarily be based on probabilities....").
164. Courts could solve this problem by considering standing based on the aggregate risk to a population. Under that approach, standing would be easier to establish because, even though one person might not face a sufficient threat of injury, the community as a whole would face a substantial threat of injury. But in Summers v. Earth Island Institute, the Court rejected this approach. 555 U.S. 488, 497-99 (2009).
165. There, an environmental association brought suit to challenge regulations that would affect various parcels of land regulated by the U.S. Forest Service.
166. Id. at 491. Although no member had firm plans to visit a site covered by this regulation, the organization had more than 700,000 members who enjoy the forest in which the sites were located, making it statistically likely that at least one of the members of the organization would visit one of those sites.
167. Id. at 497-98. The Court held that the association lacked standing, explaining that standing cannot be aggregated among the members of an organization; instead, each member must be evaluated independently for standing.
168. Id. at 498-99.
169. See Leiter, supra note 7, at 408-09 (making a similar observation).
170. See supra note 60 and accompanying text.
171. See United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 689 n.14 (1973) ("We have allowed important interests to be vindicated by plaintiffs with no more at stake in the outcome of an action than a fraction of a vote, a $5 fine and costs, and a $1.50 poll tax." (citations omitted)).
172. See City of Los Angeles v. Lyons, 461 U.S. 95, 102-03 (1983).
173. See FEC v. Akins, 524 U.S. 11, 24 (1998)
174. Accord id. at 36 (Scalia, J., dissenting). To be sure, courts have refused to recognize standing for individuals claiming a generalized grievance. But so long as each plaintiff has an individualized interest at stake-as is the case when each individual faces a threat of harm-each plaintiff has standing to bring suit even if the result is that many different plaintiffs have standing.
175. See id. at 35. An example may illustrate this point. Suppose several people each face a 20% chance of developing cancer from exposure to a toxic substance. Although each individual faces an identical risk of developing cancer, the risk is personal to each individual. Each person faces an individual risk of harm.
176. See supra note 25 and accompanying text.
177. Compare Sierra Club v. EPA, 292 F.3d 895, 899 (D.C. Cir. 2002) (requiring a substantial risk for standing), with Vill. of Elk Grove Vill. v. Evans, 997 F.2d 328, 329 (7th Cir. 1993) (allowing any risk to support standing).
178. Compare, e.g., La. Envtl. Action Network v. EPA, 172 F.3d 65, 68 (D.C. Cir. 1999) (concluding that the probability of harm from a potential deposit of hazardous waste was sufficiently substantial to support standing), with
179. Id. at 71-72 (Sentelle, J., concurring in part and dissenting in part) (disagreeing with the majority opinion).
180. There is also the question whether the harm the plaintiff suffers is cognizable under the law-a probabilistic inquiry because courts have introduced uncertainty by refusing to recognize some injuries as sufficient for standing.
181. Cf. Yuval Feldman & Doron Teichman, Are All Legal Probabilities Created Equal?, 84 N.Y.U. L. REV. 980, 985-86 (2009) (discussing the probabilistic nature of uncertain law).
182. 412 U.S. 669, 678 (1973).
183. Id. at 675-76.
184. Id. at 688.
185. See Massachusetts v. EPA, 549 U.S. 497, 548 n.2 (2007) (Roberts, C.J., dissenting) (criticizing the "attenuated nature of the injury" in SCRAP). The Court subsequently recognized in Whitmore v. Arkansas that the string of probabilities in SCRAP rendered the alleged injury "attenuated." 495 U.S. 149, 158 (1990). But in doing so, the Whitmore Court did not conclude that the probabilities were not so remote as to make the claim in SCRAP plausible. Instead, the Court switched gears, justifying SCRAP on the ground that "the string of occurrences alleged [c]ould happen immediately."
186. Id. at 159. That the injury could happen immediately, however, does not establish that the injury is likely to happen.
187. SCRAP, 412 U.S. at 690.
188. 504 U.S. 555 (1992).
189. Id. at 558-59.
190. Id. at 563-64.
191. Id. at 564.
192. See generally Hillel J. Einhorn & Robin M. Hogarth, Ambiguity and Uncertainty in Probabilistic Inference, 92 PSYCHOL. REV. 433 (1985) (describing uncertainty about uncertainty).
193. See Norbert Schwarz & Leigh Ann Vaughn, The Availability Heuristic Revisited: Ease of Recall and Content of Recall as Distinct Sources of Information, in HEURISTICS AND BIASES: THE PSYCHOLOGY OF INTUITIVE JUDGMENT 103, 103 (Thomas Gilovich, Dale Griffin & Daniel Kahneman eds., 2002)
194. see also Cass R. Sunstein, On the Divergent American Reactions to Terrorism and Climate Change, 107 COLUM. L. REV. 503, 534 (2007) (discussing the practical impact of the heuristic). Other considerations influence perceptions of risks. For example, one study concludes that the expressive function of law may lead people to have heightened perceptions of the risk of avoiding conviction arising from a lack of clarity in the law, as compared to the risk of avoiding conviction from uncertain enforcement.
195. See Feldman & Teichman, supra note 93.
196. Cf. Nichol, supra note 60, at 332 (arguing that Justices reach conclusions about adequacy of injury based on personal experience and intuition).
197. 528 U.S. 167 (2000).
198. 461 U.S. 95 (1983).
199. 528 U.S. at 181-84, 199.
200. 461 U.S. at 97-98.
201. Id. at 99-100.
202. 528 U.S. at 173.
203. See Fallon, supra note 7, at 648 (arguing that justiciability rulings may depend on concerns about interfering with the government). The Laidlaw majority distinguished Lyons on the ground that in Lyons it was speculative whether the harm would ever "take place," while in Laidlaw it was clear that the illegal activity-the discharge of pollutants-would continue. Laidlaw, 528 U.S. at 184. But the continuance or not of the illegal activity is not the relevant question. Rather, the question is whether there is any injury from that activity, and in Laidlaw, there had not been injury from the ongoing activity.
204. This is not to say that courts must exercise jurisdiction for all claims of any potential risk. As discussed infra Part IV, one might create a system under which, even though they possess Article III jurisdiction, courts may decline to exercise that jurisdiction based on the cost of the remedy, the effect of exercising jurisdiction on the government, or a host of other costs.
205. Vt. Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 774 (2000) (quoting Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 102 (1998) (internal quotation mark omitted)).
206. JOHN MITFORD & SAMUEL TYLER, MITFORD'S AND TYLER'S PLEADINGS AND PRACTICE IN EQUITY: A TREATISE ON THE PLEADINGS IN SUITS IN THE COURT OF CHANCERY BY ENGLISH BILL 106 (5th ed. 1890)
207. Accord JOHN MITFORD, A TREATISE ON THE PLEADINGS IN SUITS IN THE COURT OF CHANCERY BY ENGLISH BILL 8 (2d ed. 1787).
208. Georgia v. Braislford, 2 U.S. (2 Dall.) 402, 405 (1792) (Johnson, J.).
209. 1 JOSEPH STORY, COMMENTARIES ON EQUITY PLEADINGS, AND THE INCIDENTS THEREOF, ACCORDING TO THE PRACTICE OF THE COURTS OF EQUITY OF ENGLAND AND AMERICA, ch. 2, § 9, at 9 (10th ed. 1892).
210. See, e.g., City of Rochester v. Curtiss, Cl. Ch. 336, 339 (N.Y. Ch. 1840) ("In cases of doubtful right or remote and contingent injury, this court will wait for the right to be settled at law or the injury to become imminent, before it will interfere with its extraordinary process of injunction.")
211. Coalter v. Hunter, 25 Va. (4 Rand.) 58, 66 (1826) ("If [plaintiff] had been in the actual enjoyment of the use of the water, and had reasonable ground to apprehend that [defendant] intended to deprive him of that enjoyment, an application to the Chancellor to prevent this threatened injury, might have been proper.")
212. Bush v. Western, (1720) 24 Eng. Rep. 237 (K.B.) 237-38 (refusing to grant relief to a mortgage holder, as opposed to a land possessor, for potential damage to property since the holder did not face a sufficient probability of injury)
213. 1 JOHN NORTON POMEROY, JR., A TREATISE ON EQUITABLE REMEDIES SUPPLEMENTARY TO POMEROY'S EQUITY JURISPRUDENCE § 523, at 888 (1905) (stating that "a mere possibility of a future nuisance will not support an injunction," but nor is it necessary to prove "that the nuisance will occur"; rather, "it is sufficient... that the risk of its happening is greater than a reasonable man would incur" (first emphasis added)).
214. See Clinton Liberal Inst. v. Fletcher, 55 How. Pr. 431, 432 (N.Y. Sup. Ct. 1878)
215. WILLIAM BLACKSTONE, COMMENTARIES *225 ("[H]e, who hath the remainder for life only, is not entitled to sue for waste; since his interest may never perhaps come into possession, and then he hath suffered no injury.").
216. The Court has also justified the hearing of future injuries under Article III on the ground that historically courts could hear such claims.
217. See Vicksburg Waterworks Co. v. Vicksburg, 185 U.S. 65, 82 (1902) (holding that a threatened injury presented a case because "one of the most valuable features of equity jurisdiction[] [is] to anticipate and prevent a threatened injury, where the damages would be insufficient or irreparable").
218. 300 U.S. 227 (1937).
219. Id. at 240 (quoting Nashville, Chattanooga & St. Louis Ry. v. Wallace, 288 U.S. 249, 264 (1933)) (internal quotation mark omitted).
220. 549 U.S. 497 (2007).
221. Id. at 514.
222. Id. at 541-542 (Roberts, C.J., dissenting) (noting that one harm supporting standing was the possible loss of land in the next few decades).
223. (1885) 28 Ch. 688 at 693-95 (Eng.).
224. Id. at 700.
225. Id. at 699-700
226. see also Attorney Gen. v. Kingston-on-Thames, (1865) 34 H.L. 481 at 487 (Eng.) (refusing to enjoin the town of Kingston from dumping sewage into the Thames on the ground that that any harm from dumping might not arise for "a hundred years hence").
227. See Hessick, supra note 17, at 296.
228. DAVID LINDSAY KEIR, THE CONSTITUTIONAL HISTORY OF MODERN BRITAIN SINCE 1485, at 29 (9th ed. 1969) ("[C]ontact between the Crown and its judges was close and... the judges reckoned themselves very fully its servants.")
229. See also id. at 142. That said, beginning in the seventeenth century, England did recognize some authority of the courts to check the Crown.
230. See Roscoe Pound, The End of Law as Developed in Juristic Thought, 27 HARV. L. REV. 605, 622 (1914) (noting "the victory of the courts in the contests between courts and crown in seventeenth-century England").
231. See Gene R. Shreve, Federal Injunctions and the Public Interest, 51 GEO. WASH. L. REV. 382, 419 (1983) ("For a court to issue an injunction without finding the probability of imminent harm is wasteful of scarce judicial resources.")
232. Developments in the Law-Injunctions, 78 HARV. L. REV. 994, 1005-08 (1965) (explaining that the imminence requirement derives from a desire to avoid overly regulating conduct).
233. See Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., 130 S. Ct. 1758, 1767 n.2 (2010) (quoting Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 57 n.18 (1993)).
234. See supra note 44 and accompanying text.
235. See Nichol, supra note 40, at 176 (detailing the prudential uses of ripeness).
236. See Hotel & Rest. Emps. Union, Local 25 v. Attorney Gen., 804 F.2d 1256, 1277 n.10 (D.C. Cir. 1986) (Silberman, J., concurring in part and dissenting in part) (noting that the prudential aspects of ripeness derive from equity), vacated, 846 F.2d 1499 (D.C. Cir. 1988) (en banc).
237. See, e.g., Oakland Tribune, Inc. v. Chronicle Publ'g Co., 762 F.2d 1374, 1376 (9th Cir. 1985) (describing a "sliding scale" of likelihood and severity of harm).
238. RESTATEMENT (SECOND) OF TORTS § 933(1) cmt. b (1977) ("The more serious the impending harm, the less justification there is for taking the chances that are involved in pronouncing the harm too remote.").
239. See supra note 85 and accompanying text.
240. City of Los Angeles v. Lyons, 461 U.S. 95, 97-99 (1983).
241. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-63 (1992).
242. Massachusetts v. EPA, 549 U.S. 497, 521 (2007).
243. Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 43 (1976).
244. Whitmore v. Arkansas, 495 U.S. 149, 156-57 (1990).
245. See Evan Tsen Lee, Deconstitutionalizing Justiciability: The Example of Mootness, 105 HARV. L. REV. 603, 643-45 (1992) (noting different uses of the term "advisory opinion").
246. See, e.g., Jennifer Mason McAward, Congress's Power to Block Enforcement of Federal Court Orders, 93 IOWA L. REV. 1319, 1344 (2008) (arguing that "judicial intervention" that has "no real-world effect" is "tantamount to an advisory opinion").
247. 330 U.S. 75, 89 (1947).
248. Id. at 81-82.
249. Id. at 83, 91.
250. Id. at 88.
251. Id. at 89-90.
252. See Lee, supra note 144, at 643-44.
253. Cf. id. at 645 (criticizing the Supreme Court's use of the term "advisory opinion" merely on the basis of lack of standing).
254. City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983) (relying on Mitchell for the proposition that a plaintiff has standing only if he faces an immediate threat of injury)
255. see also Golden v. Zwickler, 394 U.S. 103, 109-10 (1969) (general interest in constitutionality of law is not an actual controversy). Even cases predating Mitchell that address insufficient injury speak in terms of standing instead of advisory opinions. In Massachusetts v. Mellon, for example, the Court concluded that it lacked jurisdiction to hear a challenge to a statute by an individual unaffected by the statute on the ground that the plaintiff must show "that he has sustained or is immediately in danger of sustaining some direct injury as the result of its enforcement." 262 U.S. 447, 488 (1923)
256. see also Ex parte Lévitt, 302 U.S. 633, 633-34 (1937) (per curiam) (using similar language to reject a challenge to the appointment of Justice Black).
257. Lee, supra note 144, at 644-51 (explaining why advisory opinions do not encompass all justiciability doctrines)
258. see also Frankfurter, supra note 82, at 1004 (limiting advisory opinions to situations in which the courts rule prematurely on the constitutionality of a statute).
259. Lee, supra note 144, at 645-46.
260. 2 U.S. (2 Dall.) 409 (1792).
261. Id. at 409-10.
262. Act of Mar. 23, 1792, ch. 11, 1 Stat. 243, 243-44 (repealed in part and amended by Act of Feb. 28, 1793, ch. 17, 1 Stat. 324, 324-325).
263. 2 U.S. (2 Dall.) at 410 n.†
264. see also 1 Stat. at 244.
265. The opinion is reproduced in a footnote in Hayburn's Case. 2 U.S. (2 Dall.) at 410 n.†.
266. See, e.g., Chi. & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 113 (1948) ("Judgments within the powers vested in courts by the Judiciary Article of the Constitution may not lawfully be revised, overturned or refused faith and credit by another Department of Government.")
267. United States v. O'Grady, 89 U.S. (22 Wall.) 641, 647-48 (1874) ("Judicial jurisdiction implies the power to hear and determine a cause, and... Congress cannot subject the judgments of the Supreme Court to the re-examination and revision of any other tribunal....")
268. See also Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 225-27 (1995) (forbidding Congress from directing reopening of decided cases).
269. Lee, supra note 144, at 644-45, 647
270. See also Frankfurter, supra note 83, at 1004.
271. Letter from Chief Justice Jay and Associate Justices to President Washington (Aug. 8, 1793), in 3 CORRESPONDENCE AND PUBLIC PAPERS OF JOHN JAY 1782-1793, at 488 (Henry P. Johnston ed., 1891).
272. Moreover, this restriction on advisory opinions has no bearing on many claims of lowprobability injuries. That is because this form of advisory opinion implicates only those laws that the Executive branch enforces. For laws that the President has no role in enforcing-such as state laws and federal laws creating private causes of action-the prohibition on advisory opinions poses no barrier.
273. Raines v. Byrd, 521 U.S. 811, 827-28 (1997) (indicating that the President and legislators cannot resort to the courts for clarification of law).
274. See, e.g., Brown v. Entm't Merchs. Ass'n, 131 S. Ct. 2729, 2733, 2742 (2011) (striking down California law regulating the sale or rental of violent video games based on a pre-enforcement challenge).
275. Although the Constitution does not prohibit courts from rendering opinions on hypothetical facts, there are several more practical reasons for courts to avoid rendering interpretations in hypothetical cases, including ensuring that there is a concrete factual background against which the court resolves the legal question and to preserve judicial resources. See infra Part IV
276. See also CHEMERINSKY, supra note 45, § 2.2, at 49. Both of these considerations are prudential, and may be outweighed by other considerations in particular cases or may simply be overridden by Congress. Thus, courts could more sensibly account for these considerations in a discretionary test, as detailed below in Part IV.
277. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) ("It is emphatically the province and duty of the judicial department to say what the law is.").
278. See Vicksburg Waterworks Co. v. Vicksburg, 185 U.S. 65, 82 (1902) (holding that a threatened injury presented a case because "one of the most valuable features of equity jurisdiction[] [is] to anticipate and prevent a threatened injury, where the damages would be insufficient or irreparable")
279. See also, e.g., Milavetz, Gallop & Milavetz, P.A. v. United States, 130 S. Ct. 1324, 1329-31 (2010) (considering an as-applied pre-enforcement challenge brought under the First Amendment).
280. See, e.g., United States v. Comprehensive Drug Testing, Inc., 579 F.3d 989, 1006-07 (9th Cir. 2009) (providing a "guidepost" for future cases), revised and superseded, 621 F.3d 1162 (9th Cir. 2010) (en banc)
281. Culombe v. Connecticut, 367 U.S. 568, 622-23 (1961) (explaining theories of coerced confession unrelated to the case). Likewise, courts routinely render interpretations of statutes and the Constitution when it is unnecessary to do so
282. See, e.g., Pearson v. Callahan, 555 U.S. 223, 236 (2009) (suggesting that courts resolve whether officials violated the Constitution in suits brought under 42 U.S.C. § 1983 even when doing so may be unnecessary because of qualified immunity)
283. Marbury, 5 U.S. (1 Cranch) at 154-73 (resolving merits of mandamus petition despite finding no jurisdiction).
284. See, e.g., Virginia v. Hicks, 539 U.S. 113, 119 (2003) (justifying overbreadth on the ground that the costs of unconstitutional limitations on speech of those not before the court warrant suspending all enforcement of the law)
285. New York v. Ferber, 458 U.S. 747, 769-70 (1982) (stating that a statute is constitutionally overbroad if it affects a "substantial" amount of protected conduct).
286. Indeed, as then-Professor Frankfurter noted, the consideration of probabilities is central to the legislative process. Frankfurter, supra note 83, at 1005 ("[L]egislation to a considerable extent must necessarily be based on probabilities, on hopes and fears, and not on demonstration."). In enacting a law, legislators must predict the need for and consequences of that legislation.
287. Lujan v. Defenders of Wildlife, 504 U.S. 555, 576 (1992). Although courts may create policy through their decisions, they may do so only in the course of resolving a dispute about rights.174 Heather Elliott, The Functions of Standing, 61 STAN. L. REV. 459, 476-77 (2008).
288. Whether all individuals will have access to courts depends on the generality of the definition of an injury. If an injury is defined generally, more people will be likely to face that injury. For example, if the injury is discrimination on the basis of race, all people may face that injury since anyone may be discriminated against on the basis of his race. But if the injury is narrowly defined to be discrimination against Asians, only Asians face that injury-though even in that case, standing is arguably appropriate since there is some chance, however small, that a white person could suffer discrimination based on the wrong conclusion that he is Asian.
289. See, e.g., Lujan, 504 U.S. at 577-78 (concluding that a private individual does not have standing to challenge executive's failure to obey law)
290. Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 220-21 (1974) (denying standing to individuals challenging congressmen holding office while being commissioned in the military in violation of Art. I, § 6, cl. 2)
291. United States v. Richardson, 418 U.S. 166, 177 (1974) (holding that a private individual lacks standing to challenge Congress's failure to publish the CIA's expenditures as required under Art. I, § 9, cl. 7)
292. See also Elliott, supra note 174 (discussing this line of cases).
293. See Lujan, 504 U.S. at 577 (arguing that granting standing would undermine the President's power to take care that the laws are enforced)
294. Richardson, 418 U.S. at 179 (noting that interest in government obedience to the law "is committed to the surveillance of Congress, and ultimately to the political process")
295. Newman v. United States ex rel. Frizzell, 238 U.S. 537, 547-48 (1915) (stating that although "every citizen and every taxpayer is interested in the enforcement of law... that general interest is not a private but a public interest... to be represented by the Attorney General or the District Attorney").
296. Hein v. Freedom from Religion Found., Inc., 551 U.S. 587, 593, 599-600 (2007)
297. Massachusetts v. Mellon, 262 U.S. 447, 486-87 (1923) (holding that taxpayers lacked standing under the Tenth Amendment to challenge federal funding of health programs for mothers and children).
298. Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 SUFFOLK U. L. REV. 881, 895-97 (1983).
299. Id. Justice Scalia's defense of standing law fails to account for all of the Court's decisions, for the Court has invoked separation of powers in denying standing for concrete and particularized injuries. In Allen v. Wright, 468 U.S. 737 (1984), for example, the Court held that black plaintiffs did not have standing based on the stigma resulting from discrimination against other blacks.
300. Id. at 761. Although stigmatization is a real injury, the Court explained that recognition of stigma as sufficient injury would extend standing to "all members of a racial group,"
301. Id. at 754, converting the courts into "virtually continuing monitors of the wisdom and soundness" of policy choices.
302. Id. at 759-60 (quoting Laird v. Tatum, 408 U.S. 1, 15 (1972)). Likewise, in Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, (1982), the Court rejected standing based on psychological distress caused by the government's illegal conduct, although that distress was a very real injury.
303. Id. at 484.
304. See Pub. Citizen, Inc. v. Nat'l Highway Traffic Safety Admin., 513 F.3d 234, 242 (D.C. Cir. 2008) (Sentelle, J., concurring in the judgment) (arguing that allowing standing based on probabilistic harm results in courts "looking more and more like legislatures rather than courts"), supplemented by 513 F.3d 234 (D.C. Cir. 2008) (per curiam).
305. This is not to say that only those who are in this minority should have standing; to the contrary, all those who face a risk of harm should have standing. Rather, the point is that the minimum-risk requirement does not achieve the separation-of-power goals articulated by the Court because it bars suit by those in the minority. It is particularly important to recognize this point given that people routinely face different risks of suffering the same harm because of their daily activities, geography, genetic predisposition, and other factors. There accordingly will almost always be some group of people facing a greater risk than the general populace.
306. FEC v. Akins, 524 U.S. 11, 24 (1998)
307. Accord id. at 36 (Scalia, J., dissenting).
308. It is not uncommon for Congress to regulate conduct to prevent low-risk injuries; indeed, because of cognitive biases, Congress may regulate to prevent low-risk events-such as airplane crashes-more readily than to prevent high-risk events-such as heart disease.
309. See generally CASS R. SUNSTEIN, RISK AND REASON: SAFETY, LAW, AND THE ENVIRONMENT (2002) (discussing the rationality of risk regulation).
310. See In re The Western Maid, 257 U.S. 419, 433 (1922) ("Legal obligations that exist but cannot be enforced are ghosts that are seen in the law but that are elusive to the grasp.")
311. Daryl J. Levinson, Rights Essentialism and Remedial Equilibration, 99 COLUM. L. REV. 857, 858 (1999) ("Rights are dependent on remedies not just for their application to the real world, but for their scope, shape, and very existence.).
312. The Safe Drinking Water Act is an example. It requires the EPA to set "maximum contaminant level goals" for water contaminants at a level at which no known adverse health consequences will occur, 42 U.S.C. § 300g-1(b)(4)(A) (2006), and then to establish regulations for each contaminant designed to achieve these goals to the extent feasible, id. § 300g-1(b)(4)(B). Of course, Congress may direct an agency to disregard trivial risks.
313. See Cass R. Sunstein, Is OSHA Unconstitutional?, 94 VA. L. REV. 1407, 1408-09 (2008).
314. See Administrative Procedure Act, ch. 324, 60 Stat. 237, 243 (1946) (codified at 5 U.S.C. § 702 (2006)) (generally authorizing review of administrative actions)
315. see also, e.g., 12 U.S.C. § 1848 (2006) (authorizing review of actions of the Federal Reserve Board)
316. 29 U.S.C. § 160 (2006) (authorizing review of actions of the NLRB).
317. CASS R. SUNSTEIN, AFTER THE RIGHTS REVOLUTION: RECONCEIVING THE REGULATORY STATE 143 (1990) ("Broad delegations of power to regulatory agencies, questionable in light of the grant of legislative power to Congress in Article I of the Constitution, have been allowed largely on the assumption that courts would be available to ensure agency fidelity to whatever statutory directives have been issued.").
318. See generally JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 73-104 (1980) (arguing that judicial review should be used in cases where the democratic process has failed).
319. See Noah D. Hall, Toward a New Horizontal Federalism: Interstate Water Management in the Great Lakes Region, 77 U. COLO. L. REV. 405, 455 (2006) (noting that representatives of industry have a sphere of influence in Congress). The explanation is that regulated industries
320. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561-62 (1992) ("[If] the plaintiff is himself an object of the action (or forgone action) at issue... there is ordinarily little question that the action or inaction has caused him injury, and that a judgment preventing or requiring the action will redress it.").
321. Andrea Kupfer Schneider, Shattering Negotiation Myths: Empirical Evidence on the Effectiveness of Negotiation Style, 7 HARV. NEGOT. L. REV. 143, 147 (2002) (noting a prelitigation settlement rate of 95%)
322. See also ALAN SCOTT RAU, EDWARD F. SHERMAN & SCOTT PEPPET, PROCESSES OF DISPUTE RESOLUTION: THE ROLE OF LAWYERS 13-21 (4th ed. 2006) (noting an empirical study that lists trial rates for certain areas of law, such as civil cases and prisoners suits, which range from 0.9% to 3.7%).
323. This is the theory underlying class actions: individuals will not bring suit because the costs of the litigation outweigh the expected rewards. John C. Coffee, Jr., Understanding the Plaintiff's Attorney: The Implications of Economic Theory for Private Enforcement of Law Through Class and Derivative Actions, 86 COLUM. L. REV. 669, 685 (1986).
324. In District of Columbia v. Heller, 554 U.S. 570 (2008), for example, the Cato Institute sought out the plaintiffs to bring suit challenging the handgun restrictions in the District of Columbia.
325. See Supreme Court Overturns D.C. Gun Ban
326. What Next?, NPR NEWS & NOTES (Jul. 3, 2008), http://pd.npr.org/anon.npr-mp3/npr/newsnotes/2008/07/20080703_newsnotes_ 01.mp3.
327. See Abram Chayes, The Role of the Judge in Public Law Litigation, 89 HARV. L. REV. 1281, 1305 (1976) ("[I]t is never hard to find [a]... plaintiff to raise the issues.")
328. Mark Tushnet, "Meet the New Boss": The New Judicial Center, 83 N.C. L. REV. 1205, 1213 (2005) (stating that current standing doctrine "will rarely impede a well-advised litigant seeking to challenge almost any statute enacted by Congress or action taken by an executive official").
329. Cf. Taylor v. Sturgell, 553 U.S. 880, 904 (2008) (rejecting arguments that the potential for many suits requires a more stringent doctrine of res judicata, because, even if res judicata does not apply, there is a "human tendency not to waste money" that "deter[s] the bringing of suits" that are bound to lose (quoting DAVID L. SHAPIRO, CIVIL PROCEDURE: PRECLUSION IN CIVIL ACTIONS 97 (2001))).
330. See Monsanto Co. v. Geertson Seed Farms, 130 S. Ct. 2743, 2760 (2010) (noting that a court may award an injunction only "to guard against any present or imminent risk of likely irreparable harm")
331. Bokulich v. Jury Comm'n of Greene Cnty., 394 U.S. 97, 99 (1969) (holding that injunctions are appropriate only "to prevent irreparable injury which is clear and imminent" (quoting Douglas v. City of Jeannette, 319 U.S. 157, 163 (1943) (internal quotation mark omitted)).
332. See, e.g., Fieger v. Mich. Sup. Ct., 553 F.3d 955, 974 (6th Cir. 2009) (vacating declaratory judgment because of lack of imminent harm)
333. El Dia, Inc. v. Hernandez Colon, 963 F.2d 488, 498 (1st Cir. 1992) (reversing grant of declaratory judgment when the plaintiff failed to demonstrate high likelihood of harm).
334. See, e.g., Britell v. United States, 372 F.3d 1370, 1383 (Fed. Cir. 2004) (rejecting challenge to abortion funding ban despite increase in health risk for some mothers).
335. See Sprint Commc'ns Co. v. APCC Servs., Inc., 554 U.S. 269, 298-90 (2008) (Roberts, C. J., dissenting) (identifying various prudential forms of standing)
336. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11
337. see generally RICHARD H. FALLON, JR., JOHN F. MANNING, DANIEL J. MELTZER & DAVID L. SHAPIRO, HART AND WECHSLER'S: THE FEDERAL COURTS AND THE FEDERAL SYSTEM 170 (6th ed. 2009) (summarizing this area of law).
338. Kowalski v. Tesmer, 543 U.S. 125, 129-30 (2004).
339. See David L. Shapiro, Jurisdiction and Discretion, 60 N.Y.U. L. REV. 543, 580-85 (1985).
340. Others have proposed prudential doctrines of abstention to replace standing.
341. See Elliott, supra note 174, at 508
342. Louis L. Jaffe, Standing to Secure Judicial Review: Private Actions, 75 HARV. L. REV. 255, 304-05 (1961)
343. Louis L. Jaffe, Standing to Secure Judicial Review: Public Actions, 74 HARV. L. REV. 1265, 1296 (1961)
344. Jonathan R. Siegel, A Theory of Justiciability, 86 TEX. L. REV. 73, 129-38 (2007)
345. Mark V. Tushnet, The New Law of Standing: A Plea for Abandonment, 62 CORNELL L. REV. 663, 700 (1977). This Article expands on those prudential tests by adding consideration of the plaintiff's interest.
346. See supra notes 110-13 and accompanying text.
347. See F. Andrew Hessick & Samuel P. Jordan, Setting the Size of the Supreme Court, 41 ARIZ. ST. L.J. 645, 661 (2009) ("Transparency further promotes legitimacy by providing the public with greater access to the decision-making process to satisfy itself of the Court's candor.").
348. See Patricia M. Wald, The Rhetoric of Results and the Results of Rhetoric: Judicial Writings, 62 U. CHI. L. REV. 1371, 1375 (1995) (noting how the drafting process forces judges to confront the case and often leads judges to "modulate, transfer, or even switch an originally intended rationale or result").
349. Joel Feinberg, The Moral and Legal Responsibility of the Bad Samaritan, 3 CRIM. JUST. ETHICS 56, 67 (1984) ("[W]here minimal effort is required to prevent harm, the moral duty to prevent it seems every bit as stringent as the negative duty not to inflict that same harm directly.")
350. William W. Fisher & Talha Syed, Global Justice in Healthcare: Developing Drugs for the Developing World, 40 U.C. DAVIS L. REV. 581, 649 (2007) (noting the "positive moral duty to prevent severe harm or to alleviate severe suffering that is within one's sphere of influence").
351. See, e.g., Robert L. Pushaw, Jr., Limiting Article III Standing to "Accidental" Plaintiffs: Lessons from Environmental and Animal Law Cases, 45 GA. L. REV. 1, 3 (2010) ("[S]tanding improves efficiency by allocating scarce judicial resources to the most pressing cases.").
352. It is unclear whether the violation of a legal right is essential for standing. Some decisions suggest that standing requires both that the plaintiff has suffered a factual harm and that the harm be the consequence of a violation of a right.
353. See Raines v. Byrd, 521 U.S. 811, 819 (1997) (noting that, for standing, the injury must involve "an invasion of a legally protected interest" (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)) (internal quotation marks omitted)). Other decisions suggest that factual harm alone will support standing.
354. See Bennett v. Spear, 520 U.S. 154, 160, 166 (1997) (granting standing based solely on the fact that the plaintiffs would suffer the adverse consequence of less water without mention of riparian rights)
355. Ass'n of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150, 152-54 (1970) (basing standing on an economic injury without regard to any legal interest).
356. The Supreme Court has claimed that there is no hierarchy of constitutional rights.
357. See Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 484 (1982). But the Court itself has created a hierarchy in its decisions about incorporation by distinguishing between fundamental and nonfundamental constitutional rights and the levels of scrutiny to apply. Similarly, the exceptions to general doctrines that the Court has recognized for some rights-such as the overbreadth doctrine for First Amendment challenges-suggest that the Court deems certain rights more important. In any event, one may easily draw a line between constitutional and nonconstitutional when determining the importance of rights.
358. Hessick, supra note 17, at 325.
359. See Duncan v. Louisiana, 391 U.S. 145, 149 (1968) ("[T]rial by jury in criminal cases is fundamental to the American scheme of justice ....").
360. See Georgia v. McCollum, 505 U.S. 42, 57 (1992) ("[P]eremptory challenges are not constitutionally protected fundamental rights; rather, they are but one state-created means to the constitutional end of an impartial jury and a fair trial.").
361. ELY, supra note 191, at 73-104 (arguing that judicial review should be used in cases where the democratic process has failed).
362. 13B CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 3532.5, at 551-72 (3d ed. 2008) ("As often happens with questions of justiciability, results are shaped by an often unarticulated sense of the importance of the rights claimed and by an uncertain pragmatic assessment of the reality of the plaintiff's claimed need for guidance.).
363. E.g., Mink v. Suthers, 482 F.3d 1244, 1257 (10th Cir. 2007) (dismissing challenge to criminal statute for lack of standing because plaintiff faced "no credible threat of prosecution")
364. Reed v. Giarrusso, 462 F.2d 706, 710-11 (5th Cir. 1972).
365. Virginia v. Am. Booksellers Ass'n, 484 U.S. 383, 392-93 (1988) ("That requirement is met here, as the law is aimed directly at plaintiffs, who, if their interpretation of the statute is correct, will have to take significant and costly compliance measures or risk criminal prosecution .... Further, the alleged danger of this statute is, in large measure, one of self-censorship; a harm that can be realized even without an actual prosecution.")
366. see also, e.g., Cal. Pro-Life Council, Inc. v. Getman, 328 F.3d 1088, 1095 (9th Cir. 2003)
367. Majors v. Abell, 317 F.3d 719, 721 (7th Cir. 2003) ("But if it arguably covers it, and so may deter constitutionally protected expression because most people are frightened of violating criminal statutes especially when the gains are slight, as they would be for people seeking only to make a political point and not themselves political operatives, there is standing."), certifying questions to 792 N.E.2d 22 (Ind. 2003)
368. cf. Laird v. Tatum, 408 U.S. 1, 15 (1972) (no standing where the law does not target the chilled activity).
369. 410 U.S. 179, 188 (1973).
370. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803) ("[W]here there is a legal right, there is also a legal remedy[,] by suit or action at law, whenever that right is invaded." (quoting 3 WILLIAM BLACKSTONE, COMMENTARIES *23) (internal quotation mark omitted)).
371. See Turner Entm't Co. v. Degeto Film GmbH, 25 F.3d 1512, 1519 n.10 (11th Cir. 1994) (noting commentators have defined comity using terms such as "courtesy, politeness, convenience or goodwill" (quoting Joel R. Paul, Comity in International Law, 32 HARV. INT'L L.J. 1, 3 (1991))).
372. Levin v. Commerce Energy, Inc., 130 S. Ct. 2323, 2336 (2010) ("Comity ... is a prudential doctrine.").
373. See, e.g., Younger v. Harris, 401 U.S. 37, 44 (1971) (invoking comity in abstaining from ruling on legality of state criminal proceedings)
374. Wright v. Associated Ins. Cos., 29 F.3d 1244, 1252 (7th Cir. 1994) (noting comity as consideration in determining whether to exercise supplemental jurisdiction).
375. See United States v. Morrison, 529 U.S. 598, 607 (2000)
376. F. Andrew Hessick, Rethinking the Presumption of Constitutionality, 85 NOTRE DAME L. REV. 1447, 1462-63 (2010).
377. Fallon, supra note 7, at 648 (developing thesis that jurisdiction doctrines reflect concerns about remedies).
378. Cf. Hessick, supra note 17, at 312 (arguing that the judiciary may be reluctant to award relief when the "plaintiff would not materially benefit from a favorable decision").
379. See supra notes 111-13 and accompanying text
380. see also Fallon, supra note 7, at 649-52 (gathering cases tending to show that jurisdiction doctrines reflect concerns about remedies).
381. See supra notes 111-13 and accompanying text.
382. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803).
383. Alexander Bickel usefully described this concept in terms of political capital. ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS 116 (2d ed. 1986). Judicial decisions against other branches have effect only if those branches acquiesce in those decisions. Id. Refusing to exercise jurisdiction allows the courts to avoid spending political capital on particularly sensitive issues.
384. Id. At the same time, however, courts may also expend capital by refusing to hear cases that the other branches believe should be heard.
385. Lujan v. Defenders of Wildlife, 504 U.S. 555, 565, n.2 ("Although 'imminence' is concededly a somewhat elastic concept, it cannot be stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative for Article III purposes-that the injury is 'certainly impending[]' ...." (quoting Whitmore v. Arkansas, 495 U.S. 149, 158 (1990))).
386. Michael P. Vandenbergh, The Private Life of Public Law, 105 COLUM. L. REV. 2029, 2079-81 (2005).
387. Courts require plaintiffs to exhaust their remedies before administrative agencies before proceeding to court because it "giv[es] agencies the opportunity to correct their own errors, afford[s] parties and courts the benefits of agencies' expertise, [and] compil[es] a record adequate for judicial review[.]" Avocados Plus Inc. v. Veneman, 370 F.3d 1243, 1247 (D.C. Cir. 2004) (third and fifth alterations in original) (quoting Marine Mammal Conservancy, Inc. v. Dep't of Agric., 134 F.3d 409, 414 (D.C. Cir. 1998)) (internal quotation marks omitted). Courts may excuse exhaustion when requiring the parties to exhaust their administrative remedies would not fulfill these goals.
388. Federal courts will abstain from ruling on the constitutionality of a state criminal statute at the instigation of a plaintiff who is being prosecuted under that law because state officers have the principal duty of implementing the state's laws.
389. See Fenner v. Boykin, 271 U.S. 240, 243-44 (1926).
390. This concern underlies the Supreme Court's decision in Lujan. There, as noted earlier, the Court denied standing for a person who asserted intent to travel to Sri Lanka to view endangered animals because the person did not specify that his trip to Sri Lanka was imminent. Lujan, 497 U.S. at 564. One reason the Court gave for dismissing the case was that recognizing standing would interfere with the President's power under Article II to enforce the laws.
391. Id. at 577. But this argument does not raise a problem of low probability. Arguably, even if the probability that the plaintiff would visit Sri Lanka was very high-for example, if the plaintiff had stated that returning to Sri Lanka was his principal goal in life-the Court would have hesitated to grant standing because it would result in premature judicial intervention into matters reserved to the President. Courts should not intervene without evidence that the political branches did not have adequate time to determine whether to take action and what course to take. Indeed, Professor Nash himself notes that there should be severe limits on the doctrine because of separation-of-powers concerns of these sorts.
392. See Nash, supra note 7, at 522.
393. 549 U.S. 497 (2007).
394. Id. at 514.
395. Id. at 523.
396. Of course, Congress or the EPA could refuse to take additional action to deal with global warming. In that situation, a court could exercise jurisdiction over a future claim challenging the EPA's failure to develop regulations combating global warming. But the fact that Congress and the EPA refused to take any additional action in the meantime may reflect Congress's intent not to create regulations targeting global warming and thus lead the court not to grant relief.
397. Hessick, supra note 17, at 321
398. see also Baker v. Carr, 369 U.S. 186, 204 (1962) (stating that the parties seeking to invoke the court's jurisdiction must have "alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions").
399. See Susan Bandes, The Idea of a Case, 42 STAN. L. REV. 227, 266 n.251 (1990)
400. David M. Driesen, Standing for nothing: The Paradox of Demanding Concrete Context for Formalist Adjudication, 89 CORNELL L. REV. 808, 819 & n.77 (2004).
401. Richard H. Fallon, Jr., Of Justiciability, Remedies, and Public Law Litigation: notes on the Jurisprudence of Lyons, 59 N.Y.U. L. REV. 1, 14 (1984)
402. Hessick, supra note 17, at 321
403. Gene R. Nichol, Jr., Injury and the Disintegration of Article III, 74 CALIF. L. REV. 1915, 1927 (1986) ("Examination of these effects serves to fine tune the judicial decisionmaking process since abstract rulings based on hypothetical impacts are more apt to be unwise ones.")
404. See also Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 472 (1982) (noting that the judicial standard for establishing standing "tends to assure that the legal questions presented to the court will be resolved, not in the rarified atmosphere of a debating society, but in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action.").
405. To be sure, this uncertainty does not pose a direct problem in all cases in which it occurs. The merits of most administrative law cases do not depend on the injury forming the basis for standing.
406. See Driesen, supra note 242, at 820 (illustrating this point through examples). But even in those cases, the facts may present equitable concerns that influence the development of doctrine.
407. See generally Frederick Schauer, Do Cases Make Bad Law?, 73 U. CHI. L. REV. 883 (2006) (arguing that the facts of a case influence legal development).
408. The Court's decisions occasionally reflect this concern. See, e.g., Renne v. Geary, 501 U.S. 312, 321-22 (1991) (finding unripe a challenge to a state law prohibiting political party endorsements for nonpartisan office on the ground that the political parties had not alleged an intent to endorse a particular candidate, and had not described "the nature of the endorsement, how it would be publicized, or the precise language" that would be forbidden). Uncertainty of this sort often occurs in facial challenges to statutes. Generally, a law is facially invalid only if there are no possible constitutional applications of the law.
409. See United States v. Salerno, 481 U.S. 739, 745 (1987). It is often not obvious whether a law has a potential constitutional application before a case arises presenting that constitutional application. For this reason, courts have dismissed facial challenges on the ground that they are not ripe.
410. See Nat'l Park Hospitality Ass'n v. Dep't of the Interior, 538 U.S. 803, 810-11 (2003) (rejecting facial challenge to regulation as unripe because regulation might have legal application in some cases)
411. But cf. Nathaniel Persily, Fig Leaves and Tea Leaves in the Supreme Court's Recent Election Law Decisions, 2008 SUP. CT. REV. 89, 96 (arguing that in some cases the Court has "conflat[ed] the as-applied/facial doctrine with doctrines of ripeness" by upholding laws against facial challenges on the ground that "the true extent of the constitutional burden remained unknown at the time of the litigation").
412. At least one court has dealt with uncertainty of injury simply by saying the uncertain increase in risk did suffice for standing.
413. See N.Y. Pub. Interest Research Grp. v. Whitman, 321 F.3d 316, 326 (2d Cir. 2003) (finding standing based on uncertain increase in risk from pollution emissions).
414. See supra notes 194-98 and accompanying text.
415. Of course, Congress should have the power to override these concerns, given that it has traditionally been the role of Congress and not the courts to determine the appropriate allocation of judicial resources.
416. See supra note 198 and accompanying text.
417. Cf. Tushnet, supra note 205, at 663 (arguing that standing determinations often reflect views about the merits).